Minnesota’s ban, by contrast, finds no historical parallel. A generic pro-voting message like “Rock the Vote” is arguably a political statement forbidden by the law. But how could it possibly be construed as pressuring anyone to vote for a particular candidate? Whatever legitimate concerns the state may have about the electoral process, it can’t justify a ban on voters’ nondisruptive speech—let alone on unobtrusive paraphernalia that’s unrelated to any issue or candidate on the ballot.
Minnesota’s ban on political apparel is so sweeping that another Supreme Court precedent is far more relevant than Burson. In the 1987 case Airport Commissioners v. Jews for Jesus, the high court unanimously struck down a ban on “First Amendment activity” at Los Angeles International Airport. The court explained that such a ban was overbroad because it necessarily extended far beyond speech “that might create problems such as congestion or the disruption of the activities of those who use LAX.” . . . That’s not to say that places with security or governmental-integrity concerns have to be free-for-alls. Burson was right to allow reasonable regulations that ensure orderly elections. Courtrooms and other sensitive areas—what lawyers call “nonpublic forums”—can impose certain restrictions. But “the wearing of a T-shirt or button that contains a political message,” the court explained in Jews for Jesus, “is still protected speech even in a nonpublic forum.”
Most fundamentally, Minnesota’s law is unjustified because its fear of political expression is so disconnected from normal society. . . . As the Court found in Tinker, which upheld students’ rights to wear black armbands to school in protest against the Vietnam War, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
It’s vital that the Supreme Court defend voters’ right to express themselves so long as they don’t prevent other voters from going about their civic business. . . .RNLA member Steve Klein described highlights from oral arguments during today's Federalist Society teleforum call:
- Except for Justice Thomas, a lot of participation from all the justices, questioning both sides intensely.
- Justice Kennedy, Alito, and Roberts wanted an articulation of a limiting principle of what is “political.” David Breemer arguing for MVA said that it’s clear this law is overbroad.
- “Please ID me” buttons – Mr. Breemer acknowledged they could be banned under anti-fraud/deception laws; whether display of an ID (as a means of making other voters think that ID was required) could be banned in the polling place was not raised during oral arguments.
- Justice Alito laid out the absurdity of breadth of prohibition.
- State has backed off breadth, perhaps in poll worker instructions, saying political is related to election and well-known. Justice Alito said that actually makes it worse. Justice Alito asked if wearing a rainbow shirt was ok, state said yes, as long as gay rights were not on the ballot.
- Fact that election judges, who have authority to judge what is allowed, are selected from both major parties is supposed to alleviate concerns about viewpoint discrimination.
- Justice Roberts pointed out that the punishment belies the interest in polling place orderliness that state puts forward, because person is allowed to vote but name is taken down for later fine. The force of the law is the chilling effect on speech.
- Even if the Court uses non-public forum analysis, there would be de facto viewpoint discrimination (NRA banned but “Parkland Strong” ok; Colin Kaepernick jersey ok, All Lives Matter not). Respondents said these are tough calls but poll workers need to be able to make these calls to maintain order.
- Justice Kagan had lighthearted criticism of polling place as place of reverence where we can suspend politics.
- Chilling conclusion by Respondents: Justice Kagan jokingly said, maybe you should make the law broader, and they said yes, we could make it broader.
- Effort to find limiting principle but aside from Justice Alito, no clear indication where any justice stood
- Burson v. Freeman was plurality opinion, and we will likely see different perspectives here also.
- Overbreadth law protects against arbitrary and discriminatory enforcement.
- Mr. Breemer pointed out several times that disruption and delay in the polling place is not caused by a person coming in an NRA shirt but by a poll worker saying the voter cannot wear it, subsequent discussion, taking down the voter's name, etc.
- Justice Gorsuch pointed out that state has to put forth an interest that justifies the ban.
- Mr. Klein concluded by noting that voting is very important, but there have to be limits on power of polling place workers to restrict voters’ rights; the law especially should not punish voters for participating in our democracy.
Given the state's counsel's different responses to hypotheticals proposed by the Court (notably, that a shirt with the text of the Second Amendment would be political, and therefore banned, but not a shirt with the text of the First Amendment), this tweet by Baker Hosteler attorney Andrew Grossman summarized the key issue in the case well:
Which pretty well proves that Minnesota's ban is vague, overbroad, and hopelessly arbitrary in application--even the advocate with months to prepare can't coherently identify what speech is banned and why.— Andrew M. Grossman (@andrewmgrossman) February 28, 2018